11th Amendment Overrules the Supreme Court

The Supreme Court interprets the Constitution. If the Court makes an unpopular decision, the recourse is an amendment. This happened with the Eleventh Amendment.

During the Revolutionary War a South Carolina merchant, Captain Robert Farquhar sold supplies to the State of Georgia on credit. Following the War, Georgia refused to pay Farquhar asserting that he was a British loyalist. Farquhar later died, and the executor of his estate, South Carolinian Alexander Chisolm sued the State of Georgia for the debt in the United States Supreme Court.

The Constitution Article III, Section 2

“The judicial power shall extend to all cases, in law and equity …;–between a state and citizens of another state…”

The State of Georgia refused to appear in court. Georgia claimed that is was protected by “sovereign immunity” and could not be sued without its consent. The Supreme Court, led by first Chief Justice John Jay, disagreed relying on Article III, Section 2 and in a 4-1[2] decision ordered Georgia to pay the debt to Farquhar’s estate.

Chisolm v. Georgia Leads to the Eleventh Amendment

The Supreme Court’s 1793 decision was one of its earliest constitutional interpretations. Constitutional government was only four years old. The decision was unpopular. Georgia’s lower house passed a bill subjecting federal officials attempting to enforce the decision to hanging without the benefit of clergy.

The Chisolm v. Georgia decision was unpopular throughout the country. Arguments of Anti-Federalists from the 1787-89 ratification debates against centralized federal power were raised anew. If federal courts could order states to pay money, states would become mere federal agencies contrary to federalism principles .

State reaction to the Chisolm decision was swift, with Massachusetts leading the way, instructing its Senators[3] and requesting of its Representatives:

“That the Senators from this State in the Congress of the United States be, and they hereby are instructed, and the Representatives requested to adopt … such amendments in the Constitution of the United States as will remove any clause or article of the said Constitution which can be construed to imply or justify a decision that a State is compellable to answer in any suit by an individual or individuals in any Court of the United States.”[4]

The Eleventh Amendment was proposed and obtained twelve state ratifications by February 7, 1795,[5] becoming the first amendment following the Bill of Rights.

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Eleventh Amendment Overrules the Supreme Court

In Chisolm v. Georgia, the Supreme Court ruled that the Constitution provided that a State could be sued in a federal court by a private citizen of another state.[6] The Eleventh Amendment overruled the Supreme Court’s decision and modified Article III, Section 2.[7] As a result of the Eleventh Amendment, States could no longer be sued by citizens of other States or foreign citizens in federal courts.

The Eleventh Amendment does not address the question of a State’s own citizens filing suit against the State in federal court, but the Supreme Court has prohibited those suits as well and shielded States from having to appear before executive agencies as well. The Eleventh Amendment has been found to embody the concept of sovereign immunity and applied it to the States.[8]

The Concept of Sovereign Immunity

“Sovereign immunity” is rooted in English common law. Since the king (the sovereign) was the source of the law, he could not break the law, or commit a legal wrong. As the king was incapable of committing a legal wrong, he was immune from being sued.

The American Constitution created a representative republic with ultimate sovereignty resting with the people. Courts found the states and federal government to be the inheritors of the sovereign immunity enjoyed by kings. Thus these governments could only be sued if they gave permission, and the 11th Amendment’s language clarified understanding regarding the use of federal courts for claims against state governments.[9]

While “sovereign immunity” has become part of American law, the idea is inconsistent with American political philosophy. A first principle holds the people are sovereign. With a sovereign populace, the thought that states or the federal government are legal descendants of the king entitled to regal immunity is illogical.

An argument exists that the First Amendment’s Right to Petition the Government for Redress of Grievances recognized that neither states, nor the federal government enjoyed “sovereign immunity”. The final right outlined in the First Amendment has become vestigial because citizens have failed to protect it. A further argument against sovereign immunity is the Tenth Amendment that reserves rights not granted to the government to the people.

The Lesson of the 11th Amendment

The Eleventh Amendment is instructive of a critical point. The people can overrule the Supreme Court when it makes a mistake of constitutional proportion by amending the Constitution.

[1]Article III established the Supreme Court and defined its power, or using the legal term, “jurisdiction”. Jurisdiction is the legal authority to make legal decisions and judgments that have the force of law regarding issues and parties over which the court is granted jurisdiction.

[2]The original Supreme Court had only 5 members, unlike the 9 members of the court currently. It’s of interest that the Constitution, while creating the Court, did not define the number of justices. That was left up to Congress the number of justices has changed over US history.

[3]Of note in the Eleventh Amendment story is that Massachusetts “instructed” its Senators. At that time state legislatures appointed Senators and “instructed” them regarding the state’s wishes. The Eleventh Amendment’s quick adoption limiting the Supreme Court’s authority demonstrates how the constitutional constraints on federal authority with states’ control the Senate. The 17th Amendment and popular election of the Senate altered that balance.

[5]There were 15 states in the Union in 1795. Hence 12 state ratifications were needed for the 11th Amendment. North Carolina was the twelfth on February 7, 1795. Communications and apparently urgency were not the same in the late 18th Century as they are today. President Adams did not notify Congress of ratification until January 8, 1798, almost three years after its actual approval. During that time the Supreme Court continued to hear cases as if the 11th Amendment did not exist.

[6]Also included in individuals who could sue states in federal court were citizens of other countries.

[7] Supporters of the Constitution during state convention debates from 1787-91 assured opponents that the Constitution did not allow suits against states. Proponents of the 11th Amendment argued that it did not change the Constitution, but rather made the original meaning clear.

[8]11th Amendment law quite complex and includes many legal fictions including one that while a state may not be sued, its officers (e.g. Governor, Attorney General et al.) can be. A detailed 11th Amendment annotation of Cornell University Legal Information Institute describes the legal history.

[9]The 14th and 15th Amendments changed the status of states giving Congress direct control over a number of issues, and laws passed pursuant to those amendments can give citizens the ability to sue states in federal court.

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[…] [1]The Eleventh Amendment was the first amendment ratified for the purpose of altering a Supreme Court decision, much as the Sixteenth Amendment overturned Supreme Court rulings against income taxes. […]

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